BAINI PRASAD (D) THR. LRS. versus DURGA DEVI

Citation: [2023] 3 S.C.R. 282 · Decided: 02-02-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 3 S.C.R.
   [2023] 3 S.C.R. 282
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BAINI PRASAD (D) THR. LRS.
v.
DURGA DEVI
(Civil Appeal Nos. 6182-6183 of 2009)
FEBRUARY 02, 2023
[B. R. GAVAI AND C. T. RAVIKUMAR, JJ.]
Transfer of Property Act, 1882 : s. 51 – Protection under –
Suit by the respondent for possession of the land by demolition of
the structure put on by the appellant and for permanent prohibitory
injunction restraining the appellant from interfering with the said
land – Appellant’s case that two years ago he had carried out
construction of the verandah in the land as part of his residential
house bonfidely believing it to be his own land – Suit decreed in
favour of the respondent – However, the first appellate court held
that the respondent not entitled to the possession of the land after
demolition of the structure put up based on the principles of
acquiescence, however, entitled to compensation – High Court set
aside the order of the first appellate court and restored that of the
trial court – Review application there against also dismissed – On
appeal, held: Appellant cannot be treated as a ‘transferee’ within
the meaning and for the purpose of s. 51 – To attract s. 51, the
occupant of the land must have held possession under the colour
of title, and his possession must have been adverse to the title of the
true owner – Concurrent findings of the courts below that the
respondent is the owner of the land in question and the original
appellants had encroached upon it and ignoring the absence of
any title made structures thereon at his own risk – Thus, the
appellants not entitled to rely on the provision u/s. 51 to seek for
restoration of the modification made by the first appellate court
with respect to demolition and possession – Being the party
propounding the application of the principle of acquiescence it was
the burden of the original appellant to establish the fact that the
respondent had acquiesced in the infringement of his legal right
and still stood by and allowed the construction – Furthermore, in
the absence of any misrepresentation by an act or omission, the
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mere fact that the respondent took some reasonable time to approach
the court for recovery of possession cannot, be a reason to deny
him the relief – No flaw, legal error, perversity or patent illegality
found in the findings – Thus, the judgment of the first appellate
court set aside and that of the trial court restored – Principle of
acquiescence and estoppel – Evidence Act, 1872 – s. 115.
Dismissing the appeals, the Court
HELD: 1.1 The contention of the appellants founded on
Section 51 of the Transfer of Property Act, 1882 is totally misplaced
and misconceived. This position would be revealed if ground ‘b’
raised in these appeals is juxtaposed to ground ‘d’. Noticeably,
the appellants assail the reversal of the modification of the
judgment and decree passed by the First Appellate Court and
attempting to sustain the modification based on contentions
founded on the principle of estoppel and relying upon Section 51
of the TP Act. Conceptually, the underlying principles in Section
51, TP Act and the principle of estoppel under Section 115 of the
Evidence Act, 1872 are converse and cannot co-exist. [Para
7][290-C-D]
1.2 The original appellant failed to establish that he is a
“transferee” within the meaning of the TP Act and for the purpose
of Section 51, TP Act. In order to attract the Section the occupant
of the land must have held possession under colour of title, his
possession must not have been by mere possession of another
but adverse to the title of the true owner and he must be under
the bone fide belief that he has secured good title to the property
in question and is the owner thereof. Section 51 gives only
statutory recognition to the above three things. At the same time,
in the case on hand, the concurrent findings of the courts below
is that the respondent is the owner of the land in question and
the original appellants had encroached upon it and effected
construction. The appellants have failed to establish the above
mentioned three things. The evidence on record would also go
to show that even the construction was effected in deviation of
the approved plan. [Para 10][292-C-E]
1.3 In the light of the concurrent findings on the questions
of ownership and encroachment, it can only be held that it was
BAINI PRASAD (D) THR. LRS. v. DURGA DEVI
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[2023] 3 S.C.R.
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